Kerala High Court
Kum.Sanjana Sunny vs The Admission Supervisory Commitee For ... on 16 August, 2014
Author: Anil K. Narendran
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938
WP(C).No. 13844 of 2016 (E)
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PETITIONER(S):
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KUM.SANJANA SUNNY
IST YEAR M.B.B.S STUDENT,
MALABAR MEDICAL COLLEGE & RESEARCH CENTRE,
ATHOLI, CALICUT 673 315.
BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.TONY GEORGE KANNANTHANAM
SRI.THOMAS GEORGE
SRI.ALEX GEORGE (CHAMAPPARAYIL)
RESPONDENT(S):
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1. THE ADMISSION SUPERVISORY COMMITEE FOR PROFESSIONAL
COLLEGES
(REPRESENTED BY ITS MEMBER SECRETARY)
PARASANTHI BUILDINGS, M.P.APPAN ROAD,
VAZHUTHAKKAD, TRIVANDRUM - 695 014.
2. THE KERALA UNVERSITY OF HEALTH SCIENCES
MEDICAL COLLEGE.P.O., THRISSUR 630 596,
REPRESENTED BY ITS REGISTRAR.
3. THE PRINCIPAL
MALABAR MEDICAL COLLEGE & RESEARCH CENTRE,
ATHOLI, CALICUT 673 315.
R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY
COMMITTEE FOR PROFESSIONAL COLLEGES
R2 BY ADV. SRI.P.SREEKUMAR,SC,KERALA UNVERSITY OF HEALTH
SCIENCES
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.07.2016, ALONG WITH WPC. 21891 AND 24513/2016, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 13844 of 2016 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE CASTE CERTIFICATE DATED 16/8/2014
OF THE PETITIONR
P2 TRUE COPY OF THE INCOME CERTIFICATE DATED 16/8/2014
ISSUED IN RESPECT OF PETITIONER'S FATHER
P3 TRUE COPY OF THE NON-CREAMY LAYER CERTIFICATE DATED
11/11/2015
P4 TRUE COPY OF THE MARK IST FOR PLUS TWO OF THE PETITIONER
P5 TRUE COPY OF THE LETTER DATED 27/11/2015 FROM THE 3RD
RESPONDENT
P6 TRUE COPY OF THE CERTIFICATE DATED 5/12/2015 FROM THE
COMMISSIONER FOR ENTRANCE EXAMINATION.
P7 TRUE COPY OF THE LETTER DATED 23/1/2016 ISSUED FROM THE
3RD RESPONDENT
P8 TRUE COPY OF THE ORDER DATED 30/1/2016 OF THE 1ST
RESPONDENT
RESPONDENT(S)' EXHIBITS: NIL
-----------------------
/TRUE COPY/
P.S. TO JUDGE.
P.R. RAMACHANDRA MENON
&
ANIL K. NARENDRAN, JJ.
..............................................................................
W.P.(C)Nos.13844, 21891 and
24513 of 2016
.................................................................
Dated this the 9th September, 2016
JUDGMENT
P.R. Ramachandra Menon, J.
The order under challenge in all these three writ petitions is one and the same, it being a common one, dealing with the rejection of approval of Admission in the I year MBBS Course of the petitioners in the respondent Medical College, for not having found a place in the list prepared by the Commissioner for Entrance Examinations pursuant to the Common Entrance Test, under the 'category' to which they belonged. The question involved is whether the petitioners can claim the benefit as members of OBC / SEBC requiring only 40% marks in the Common Entrance Examination to get declared as eligible though they do not claim the benefit of 'reservation' and had participated in the Common Entrance Test as a 'General candidate', in turn W.P.(C)Nos.13844, 21891 and 24513 of 2016 2 producing no supporting documents in this regard.
2. As mentioned above, the petitioners participated in the Common Entrance Examination conducted by the Commissioner for Entrance Examinations, projecting their credentials as a 'General candidate', though they contend as belonging to OBC/SEBC category. Admittedly, no benefit of reservation was ever claimed. If at all any such claim was to be mooted, necessary certificates issued by the competent authority in the prescribed form, endorsed at the appropriate place in the application form, had to be made available; which has not been done.
3. The eligibility fixed for admission to the MBBS Course is 50% in the case of 'General category' candidates; whereas it is only 40% in the case of SC/ST & OBC/SEBC. Though the petitioners claimed that they had performed well in the examinations and had obtained the requisite extent of marks in their 'Plus Two' level and more than 50% in the core subjects (Physics, Chemistry and Biology), in the Common Entrance Test W.P.(C)Nos.13844, 21891 and 24513 of 2016 3 conducted by the Commissioner for Entrance Examinations, they could score only less than 50%, though above 40%. Since the petitioners did not get the requisite extent of 50% marks to get admission as a 'General candidate' in any Medical colleges even under the Management quota available to the Self Financing Colleges, they thought of obtaining admission as a member of OBC/SEBC(who only require 40% marks in the Common Entrance Test) and it was accordingly, that necessary certificates were procured and produced before the College authorities obtaining admission in the Management Quota, prior to the cut off date in respect of the academic year 2015-16 and were pursuing their studies.
4. In the case of the petitioner in W.P.(C)No.13844 of 2016, Ext.P1 (16.08.2014) is the Caste Certificate showing the status of the petitioner as a member of the OBC /Ezhava community. Ext.P2 is the Income Certificate dated 16.08.2014 in respect of her father, certifying that the yearly income is only Rs.60000/- . Ext.P3 is the Non-Creamy Layer Certificate dated 11.11.2015 W.P.(C)Nos.13844, 21891 and 24513 of 2016 4 (obtained only much after the admission effected before the cut off date of 30.09.2015); while Ext.P4 is the Mark-list in respect of 'Plus Two' level. As conceded by the petitioners, by virtue of their lower position in the rank list in the Common Entrance Test conducted by the Commissioner for Entrance Examinations, they would not get admission in the 'Merit quota'. It was accordingly, that steps were taken to see whether admission could be obtained under the 'Management quota', availing financial assistance from different sources, in turn, getting admission in the respondent college just a few days prior to the closing date for admission. It is pointed out that the respondent college was not permitted to have renewal to run the course for the year 2015-16 because of various defects pointed out by the Medical Council, which made them to approach this Court by filing W.P. (C)No.28615 of 2015. After considering the facts and figures , an interim order was passed by this Court on 22 .09.2015 permitting the College to conduct the course and it was accordingly that admission was secured to the candidates including the W.P.(C)Nos.13844, 21891 and 24513 of 2016 5 petitioners.
5. It was revealed to the petitioner in W.P.(C) 13844/16 by the respondent College that the University had not granted Registration for want of approval by the Admission Supervisory Committee ('ASC' in short) because of some defects and in particular, that the petitioner's name was not seen included in the rank list prepared by the Commissioner for Entrance Examinations. Ext.P5 communication was issued directing to produce the relevant documents. The said petitioner obtained Ext.P6 certificate dated 05.12.2015 issued by the Commissioner for Entrance Examinations, which showed that she had 'qualified' the Test conducted by the Commissioner. It is contended that the petitioner being a member of the OBC in the Non-Creamy Layer , eligibility is only '40% marks' in the said Test, which is stated as satisfied in the case of the petitioner.
6. In the course of further proceedings, the petitioners were required to be present before the Admission Supervisory Committee along with the required documents in support of their W.P.(C)Nos.13844, 21891 and 24513 of 2016 6 claim. It is stated that the petitioners and other students concerned had appeared before the Committee (ASC) and produced all the relevant documents, particularly the Caste certificate, Income certificate, Non-Creamy Layer certificate, etc. But the Committee observed that these certificates were not produced at the time of filing the application and in the prescribed format ; more so when there was no such claim as a member of the OBC/SEBC while participating in the Test conducted by the Commissioner for Entrance Examinations. As a natural consequence, their names were never included in the category-wise list, but were shown only under the General category. Since the eligibility of the petitioner as a member of OBC/SEBC ( to have reckoned the eligibility as 40% as against 50% in the case of General candidates) was not established before the Commissioner for Entrance Examinations, the ASC held that the admission could not be approved. This order is under challenge in these writ petitions.
7. Heard Mr. Kurian George Kannanthanam, the learned Sr. W.P.(C)Nos.13844, 21891 and 24513 of 2016 7 Counsel appearing for the petitioners in W.P.(C)Nos.13844 of 2016 and 24513 of 2016, Mr. T.B. Hood, the learned counsel appearing for the petitioner in 21891 of 2016, Mr. K.C. Vincent, the learned Sr. Government Pleader who entered appearance on behalf of the State/Commissioner for Entrance Examination, Smt. Mary Benjamin, the learned Standing Counsel for the ASC, Mr. Sanjay, the learned Counsel for the respondent College and also Mr. P.Sreekumar, the learned Standing Counsel for the University.
8. The crux of the issue involved is whether the admission given to the petitioners in the respondent College, despite not possessing 50% marks in the Common Entrance Test (who contested as a General candidate) could be treated as a valid admission, reckoning the 'eligibility' (40%) as members of the OBC/SEBC based on the Certificates subsequently produced and despite not finding a place in the 'category-wise list' prepared by the Commissioner for Entrance Examinations. In other words, to claim the benefit of lesser extent of eligibility (40%) for a member of OBC/SEBC (as against 50% in the case of a General W.P.(C)Nos.13844, 21891 and 24513 of 2016 8 candidate) and to get admission in a Self Financing Institution in the Management quota, is it mandatory to have found a place in the 'category wise list' prepared by the Commissioner for Entrance Examinations. It is stated that the petitioners in W.P (C)Nos.13844 of 2016 and 21891 of 2016 have cleared the COMEDK (Consortium of Medical, Engineering and Dental Colleges of Karnataka). Examination in Karnataka and have secured more than 50% marks .
9. There is also a challenge in W.P.(C)No.21891 of 2016, to the effect that the 'ASC' is not correct or justified in not recognising COMEDK Examination as a proper/prescribed test to get qualified for getting admission in a Self Financing Medical College like the respondent College.
10. Mr. Kurian George Kannanthanam, the learned Sr. Counsel for the petitioners submits that the petitioners are not claiming any benefit of 'reservation' and only when the benefit of reservation is claimed would it be necessary to have found a place in the 'category-wise' list prepared by the 'Commissioner W.P.(C)Nos.13844, 21891 and 24513 of 2016 9 for Entrance Examinations for getting admission in the Self Financing Medical Institutions. In so far as their caste status cannot be disputed, in view of the relevant certificates issued by the competent authority, there was nothing wrong on the part of the respondent Institution in having given admission to the petitioners, which ought to have been approved by the 'ASC' and that the University ought to have registered their names.
11. On the first blush, it may appear that the petitioners have got a case. But the fact remains that the Prospectus issued and the Guidelines for conducting the Common Entrance Test clearly mandate production of the Caste Certificate, Income Certificate, Non-Creamy Layer Certificate, etc., in the prescribed form as part of the application form. The certificate has to be issued by the competent authority and it will form part of the application, to be dealt with by the authorities concerned. It is for the concerned authorities to cause verification of the certificates and it is thereafter that the caste status/eligibility status is confirmed, in turn leading to inclusion of the candidates W.P.(C)Nos.13844, 21891 and 24513 of 2016 10 belonging to the said segment at the appropriate place. In so far as the petitioners do not have a case that they have claimed the benefit of caste (OBC/SEBC), while participating in the Common Entrance Test, their candidature could only be considered as a 'General Candidate'. Admittedly since the petitioners failed to secure the minimum of 50% marks in the Common Entrance Test, they cannot aspire to have admissions to the professional course concerned as a General candidate.
12. It may be true that the petitioners belong to OBC/SEBC and are of 'Non-Creamy Layer' segment. But authenticity of the certificates now produced by them cannot be verified by the 'ASC' nor does it form part of the job of the Committee or of the University. They do not have any infrastructure as well, in this regard. When the petitioners contend that they are not claiming the benefit of any 'reservation' for getting admissions to MBBS, by virtue of their caste status, they are supposed to get 50% marks in the Common Entrance Test, to get declared as 'eligible'. In other words, when the petitioners contend that only 40% W.P.(C)Nos.13844, 21891 and 24513 of 2016 11 marks in the Common Entrance Test is necessary in their case , (being OBC/SEBC), such benefit by way of concession can be extended only on substantiating that the petitioners are actually eligible for such concession by virtue of the caste status. Unless and until it is proved by producing relevant certificates issued by the competent authorities that the petitioners belonged to OBC/SEBC, the concession of lower extent of eligibility marks (40% as against 50% in the case of General candidates) cannot be sought for or obtained. The contention that the petitioners do not claim the benefit of 'reservation' on one hand and the contention on the other hand that they are eligible to get the benefit of lesser merit/marks by virtue of their caste status (to satisfy the eligibility conditions) do not reconcile with each other.
13. Another important aspect to be noted is that the ASC has been constituted under the relevant provisions of Act 19 of 2006 [The Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Explorative Fee and other Measures to Ensure Equity W.P.(C)Nos.13844, 21891 and 24513 of 2016 12 and Excellence in Professional Education Act]. The powers and duties and responsibilities of the Committee have been clearly stipulated in the statute. Verification of the Caste Certificate, Income Certificate or Non-Creamy Layer Certificate does not come within the purview of such powers, duties or responsibilities of the Committee. The Committee does not have any infrastructure to do such exercise as rightly put forth by the learned Standing Counsel . These aspects have to be verified by the concerned authorities of the Government and it is for this reason that the certificates are necessarily to be produced along with the application, which admittedly has not been done. Since the petitioners did not even claim any benefit as a member of OBC/SEBC at the time of making the application and admittedly since they had not produced any such Certificates in the prescribed format, along with the applications , they missed the chance in getting their name included in the category wise list prepared by the Commissioner for Entrance Examinations. It was in the said circumstance that approval was rejected by the W.P.(C)Nos.13844, 21891 and 24513 of 2016 13 ASC as per the impugned order , which cannot be assailed under any circumstance.
14. Mr. Sanjay, the learned counsel appearing for the respondent Institution as well as the learned counsel appearing for the petitioners pointed out that, pursuant to the interim order passed by this Court in the writ petition filed by the respondent Institution enabling to have the course conducted for the year 2015-2016, an agreement was executed between the said Institution and the Government . Based on the contents of the said agreement, a G.O. was issued as Ext.P6 (in W.P.(C) 21891 of 2016)(G.O.(Rt)No.3129/2015/H&FWD dated 27.09.2015). But it was also mentioned therein that it will be subject to approval by the ASC . It is after detailed scrutiny of the facts, figures and the proceedings so far, that the Committee has passed Ext.P9 approval order dated 29.09.2015 for MBBS 2015- 16 in turn approving the Prospectus and the Consensual Agreement. The challenge raised by the petitioner in W.P.(C) No.21891 of 2016 against Ext.P9 is not substantiated in any W.P.(C)Nos.13844, 21891 and 24513 of 2016 14 manner .
15. During the course of hearing, the learned counsel for the petitioners sought to place reliance on the verdict passed by the Supreme Court in Civil Appeal 1691 of 2016 and connected cases, to contend that, considering the scheme of reservation provided to the OBC sector, the certificates produced subsequent to the examination could be accepted for rendering justice and as such the names of the petitioners ought to have been approved by the ASC , to be registered by the University. It is also pointed out that the respondent Institution got only very little time to complete the admissions, as clearance was given by this Court only on 22.09.2015, the prospectus was submitted for approval on 27.09.2015; approval was given by the ASC as per Ext.P9 in W.P(C) 21891 of 2016 on 29.09.2015 and that the admission was completed on the next day, i.e., 30.09.2015. It is also stated that the petitioners have already completed one year in the Institution and sending them out at this stage will benefit nobody and that no fresh admissions can be made to fill W.P.(C)Nos.13844, 21891 and 24513 of 2016 15 up the vacant slots, which can only cause irreparable loss and hardships to the petitioners and also to the respondent institution, who has to find out alternate source for filling the gap in the deficit income.
16. Coming to the ruling rendered by the Supreme Court in Civil Appeal No.1691 of 2016 and connected cases, it was a case where the question of law to be decided was that whether a candidate who appeared in an examination under the OBC category and submitted the certificate after the last date mentioned in the advertisement, was eligible for selection to the post under the OBC category or not. The dispute was with reference to appointment to the post of Staff Nurse in the Dept. of Health and Family Welfare, Govt of NCT of Delhi. The last date for submitting the application was on 21.01.2008. The applicant had preferred a petition before the competent authority for issuance of caste certificate, which however, was not issued on time. In the said circumstance, application was submitted without producing the OBC certificate along with the application form, W.P.(C)Nos.13844, 21891 and 24513 of 2016 16 before the last date of submitting the application. Since the candidature was not considered for want of OBC certificate, the aggrieved party approached the High Court at Delhi, seeking for a writ of mandamus commanding the respondents to accept the OBC certificate obtained after the cut off date for selection to the post of Staff Nurse. The said writ petition was allowed by the learned single Judge placing reliance on an earlier verdict passed in W.P.(C) 9112 of 2008 (Pushpa vs. Government of NCT of Delhi and ors., involving the same advertisement /notification). However on appeal, the Division Bench set aside the verdict passed by the learned single Judge, which in turn was sought to be challenged before the Supreme Court. The Apex Court observed that the candidate had submitted an application before the competent authority for obtaining the Caste Certificate, at least 10 days before the cut off date, which however was not issued by the last date for submitting the application. Placing reliance on various verdicts passed at different points of time, the Apex Court held that the view taken by the Division Bench was W.P.(C)Nos.13844, 21891 and 24513 of 2016 17 not correct or sustainable. It was also observed that the petitioners concerned were entitled to get the OBC certificate before the provisional selection list was published, to claim the benefit of the reservation in the OBC category (paragraph 14). It was accordingly, that the appeal was allowed restoring the verdict passed by the learned single Judge in favour of the candidates/writ petitioners. This Court finds that the above verdict does not come to the rescue of the petitioners in any manner.
17. In the instant cases, admittedly no benefit of reservation was claimed by the petitioners as members of the OBC/SEBC, but for projecting their credentials as 'General candidates'. Admittedly, they had not made any application to obtain all the said/relevant Certificates before submitting the application. Still admittedly, such certificates procured and produced much later, are not in the prescribed form. Incidentally, it will be worthwhile to make a reference to Ext.P4 'Non-Creamy layer Certificate' produced by the petitioner in W.P.(C) 21891 of W.P.(C)Nos.13844, 21891 and 24513 of 2016 18 2016, which is a Certificate for applying for appointment to the posts under the Government of Kerala and its Organisations and Institutions. It may be true that the petitioners are not claiming the benefit of 'reservation' to get admission as a member of OBC/SEBC , but at the same time it is to be noted that they do not have the requisite extent of (50%) marks to make them 'eligible' as 'General candidates'- if no benefit of reservation is needed. 'Reservation' in the quota for OBC/SEBC, is of course one thing; whereas the eligibility requirement in respect of OBC/SEBC is a different thing. As per the relevant norms, when the eligibility in respect of General candidate was fixed as 50% marks, eligibility in respect of 'OBC/SEBC' candidates was only 40%. Admittedly, since the petitioners do not have 50% marks and are not eligible to get admitted as a General candidate, their claim by virtue of having more than 40% marks can be considered and declared as eligible, only if they substantiate that they are members of OBC/SEBC. For this, proper certificate issued by the competent authorities was necessary, which had to W.P.(C)Nos.13844, 21891 and 24513 of 2016 19 be in the prescribed form along with application, for facilitating enquiry and verification by the appropriate authorities. Having not chosen to do so and having omitted to find a place in the 'category-wise list' prepared by the Commissioner for Entrance Examinations, it is not for the petitioner to take a U-turn now and say that they should be given the benefit of concession as a member of the OBC/SEBC, to have them declared as eligible by virtue of possessing more than 40% marks in the examination conducted by the Commissioner for Entrance Examinations, though it is less than the minimum (50%) prescribed for 'General candidates'.
18. Mr. Sreekumar, the learned Standing Counsel for the University submits that the rules/ norms cannot be watered down in any manner and strict adherence is necessary to preserve the quality of education, particularly involving a professional course like MBBS. It is stated that the another Division Bench headed by the Chief Justice of this Court had occasion to consider the lapse on the part of the concerned Institution in uploading the W.P.(C)Nos.13844, 21891 and 24513 of 2016 20 particulars of the students who were admitted before the cut off date , i.e., 30.09.2013 in respect of BDS and were continuing studies without sanction by the University for not having completed the proceedings within the stipulated time. The law declared by the Supreme Court at different points of time, including Mridul Dhar & Anr. vs Union of India & others ((2005) 2 SCC 65], Priya Gupta vs. State of Chattisgarh [(2012) 7 SCC 433], and Chandigarh Administration vs. Jasmine Kaur [(2014) 10 SCC 521] highlight the sanctity of medical admission . Observations in paragraph 17 and 26, to the extent it is necessary, are extracted below:
"17. Learned counsel for the College contended that only a short time was available for the College to complete the admission of the increased seats since affiliation was granted by the University only on 25.09.2013. The above submission or reason cannot be a ground to accept the case of the College for not registering the students within the time allowed by the University or submitting the hard copy by 01.10.2013 before 5.00 p.m. The learned Single Judge thus did not commit any error in taking the view that the admissions W.P.(C)Nos.13844, 21891 and 24513 of 2016 21 were not carried on or before the cut-off date, i.e., 30.09.2013."
26. The Apex Court thus laid down that only in exceptional cases, unequivocal discrimination or arbitrariness or pressing emergency admission may be permissible and it was held that it is only where the ends of justice would be subverted or the process of law would stand frustrated that the Court should exercise their discretion of admitting candidates to the courses after the deadline of 30th September of the relevant academic year.."
19. Based on the discussions, interference was declined and the appeal was dismissed as per judgment dated 20.02.2015 in W.A.No.186 of 2015.
20. It may be true that the petitioners are continuing studies for the past one year in the respondent College. There was a duty to the respondent to ensure that only the eligible candidates were given admission, lest they should suffer, if at all any lapse was there. While approving the agreement as per the relevant G.O. issued, the Government had clearly stipulated that W.P.(C)Nos.13844, 21891 and 24513 of 2016 22 the Prospectus/Agreement had to be got approved by the ASC. The terms had to be got approved by the ASC. The Prospectus of the Institution was submitted for approval only on 27.09.2015 and the approval order was passed on 29.09.2015, which clearly stipulated that 'COMED K' will not be a basis for giving admissions and that the eligibility would be reckoned only based on the examinations conducted by the Commissioner for Entrance Examinations. This being the position, the admission to 'COMED K' student was given either without waiting for the approval of the ASC (given on 29.09.2015) or contrary to the terms of approval. As such, the respondent Institution cannot get absolved from the liability, if at all any, to be fixed by the University in appropriate terms. As it does not form the subject matter of these writ petitions, we do not intend to express anything further in this regard. It will be for the University/Medical Council or such other authorities to take appropriate steps, if at all any lapse or violation is involved. We find that there is absolutely no merit in all these writ petitions.
W.P.(C)Nos.13844, 21891 and 24513 of 2016 23 The order passed by the ASC is perfectly within the four walls of law and is not assailable under any circumstance. Interference is declined and all the three writ petitions are dismissed.
P.R. RAMACHANDRA MENON, JUDGE ANIL K. NARENDRAN, JUDGE lk